STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

June 10, 2014 

RORY L. PERRY II, CLERK 

FRANKLIN P. BAILEY, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-0116 (BOR Appeal No. 2047628) 

(Claim No. 2011023139) 

UNITED COAL COMPANY, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Franklin P. Bailey, by Reginald D. Henry and Rodney A. Skeens, his attorneys, 

appeals the decision of the West Virginia Workers’ Compensation Board of Review. United Coal 

Company, LLC, by H. Toney Stroud, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated January 9, 2013, in 

which the Board affirmed a September 13, 2012, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s November 4, 2011, 

decision granting Mr. Bailey an additional 5% permanent partial disability award related to 

occupational pneumoconiosis. The Office of Judges determined that Mr. Bailey had been fully 

compensated for his disability related to occupational pneumoconiosis by a 15% award granted 

in a prior claim. The Court has carefully reviewed the records, written arguments, and 

appendices contained in the briefs, and the case is mature for consideration. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

Mr. Bailey worked as a miner for United Coal Company. During the course of his 

employment, he was frequently exposed to the hazards of breathing minute particles of coal dust, 

and he developed occupational pneumoconiosis as a result of that exposure. On April 23, 2002, 

the claims administrator granted Mr. Bailey a 15% permanent partial disability award based on 

his exposure. Several years later, Mr. Bailey filed another claim for workers’ compensation 

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benefits based on occupational pneumoconiosis. His claim was held compensable, and the 

Occupational Pneumoconiosis Board concluded that he had 20% impairment related to 

occupational pneumoconiosis. The Board based this determination on a diffusion study in which 

Mr. Bailey’s DL/VA results were at 60% of the predicted normal output. On November 4, 2011, 

the claims administrator granted Mr. Bailey an additional 5% permanent partial disability award 

above the 15% award he had received under his prior claim. The Occupational Lung Center then 

performed a diffusion study in which Mr. Bailey’s DL/VA results were at 69% of predicted 

normal output. The Occupational Pneumoconiosis Board then testified in a hearing before the 

Office of Judges. In the hearing, the Board amended its previous finding based on the diffusion 

study of the Occupational Lung Center. The Board held that this study was a better 

representation of Mr. Bailey’s impairment from occupational pneumoconiosis because this study 

had a comparably higher flow volume than the earlier study. The Board testified that the results 

of this study were equivalent to a 10% whole person impairment rating. The Board concluded 

that Mr. Bailey had no more than 15% whole person impairment related to occupational 

pneumoconiosis. On September 13, 2012, the Office of Judges reversed the claims 

administrator’s decision and granted Mr. Bailey no additional permanent partial disability award. 

The Board of Review affirmed the Order of the Office of Judges on January 9, 2013, leading Mr. 

Bailey to appeal. 

The Office of Judges concluded that Mr. Bailey had been fully compensated by the prior 

15% permanent partial disability award for the disability resulting from occupational 

pneumoconiosis. The Office of Judges further concluded that any payment of permanent partial 

disability award made pursuant to the claims administrator’s November 4, 2011, decision should 

be designated as an overpayment. The Office of Judges based its determination on the testimony 

of the Occupational Pneumoconiosis Board. The Office of Judges noted that the Occupational 

Lung Center diffusion test was the most reliable indicator of Mr. Bailey’s pulmonary impairment 

because it had produced greater flow volumes than the earlier diffusion study. The Office of 

Judges found that this study showed that Mr. Bailey was not entitled to any greater than a 15% 

permanent partial disability award for his occupational pneumoconiosis. The Board of Review 

adopted the findings of the Office of Judges and affirmed its Order. 

We agree with the conclusions of the Board of Review and the findings of the Office of 

Judges. Mr. Bailey had not demonstrated that he has any greater than 15% whole person 

impairment related to occupational pneumoconiosis. He has already received a 15% permanent 

partial disability award under a prior claim and therefore, has been fully compensated by this 

prior award. The diffusion study performed by the Occupational Lung Center is the most reliable 

indicator of Mr. Bailey’s pulmonary impairment, and both the Occupational Pneumoconiosis 

Board and the Office of Judges properly relied on this study. 

For the foregoing reasons, we find that the decision of the Board of Review is not in clear 

violation of any constitutional or statutory provision, nor is it clearly the result of erroneous 

conclusions of law, nor is it based upon a material misstatement or mischaracterization of the 

evidentiary record. Therefore, the decision of the Board of Review is affirmed. 

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Affirmed. 

ISSUED: June 10, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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